EXHIBIT 10.18
AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of March 5, 2003, is entered into between and among, on
the one hand, the lenders identified on the signature pages hereof (such
lenders, together with their respective successors and assigns, are referred to
hereinafter each individually as a "Lender" and collectively as the "Lenders"),
FOOTHILL CAPITAL CORPORATION, a California corporation, as the arranger and
administrative agent for the Lenders ("Agent"), and, on the other hand, HYPERCOM
CORPORATION, a Delaware corporation ("Parent"), and each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries are
referred to hereinafter each individually as a "Borrower", and individually and
collectively, jointly and severally, as the "Borrowers"), with reference to the
following:
W I T N E S S E T H
WHEREAS, Borrowers and Parent previously entered into that certain
Loan and Security Agreement, dated as of July 31, 2003, as amended by Amendment
Number One to Loan and Security Agreement dated as of October 3, 2001, by
Amendment Number Two to Loan and Security Agreement dated as of November 13,
2001, by Amendment Number Three to Loan and Security Agreement dated as of
February 13, 2002, by Amendment Number Four to Loan and Security Agreement dated
as of June 24, 2002, and by Amendment Number Five to Loan and Security Agreement
dated as of December 23, 2002 (as the same may be further amended, restated,
supplemented, or otherwise modified from time to time, the "Loan Agreement"),
with Agent and Lenders pursuant to which Lenders have made certain loans and
financial accommodations available to Borrowers and Parent;
WHEREAS, Borrowers have requested that the Lender Group consent to
the sale of certain assets of Hypercom do Industria e Comercio Ltda., a
Brazilian limited liability company ("Hypercom Brazil"), and Hypercom Latino
America, Inc., a Florida corporation ("Hypercom Latino"), pursuant to that
certain Private Instrument of Assignment and Transfer of Quotas and Other
Agreements, dated as of December 31, 2002, a true and correct copy of which has
been previously provided to Agent (the "Aquarius Transaction");
WHEREAS, Borrowers have requested that the Lender Group consent to
the formation of Hypercom Trading (Shanghai), Co. Ltd. and to the investment by
a Borrower in Hypercom Trading (Shanghai), Co. Ltd. in an amount that does not
exceed $200,000 in the aggregate (the "Shanghai Transaction"; and together with
the Aquarius Transaction, collectively the "Designated Transactions");
WHEREAS, Borrowers have requested that the Loan Agreement be amended
as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth
herein, the Lender Group is willing to so consent to the amendment of the Loan
Agreement and to the consummation of the Designated Transactions.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement, as amended
hereby.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by adding the
following defined term in proper alphabetical order:
"Sixth Amendment" means that certain Amendment Number Six to Loan
and Security Agreement, dated as of March 5, 2002, among Lenders, Agent, Parent
and Borrowers.
"Sixth Amendment Effective Date" means the date, if ever, that all
of the conditions set forth in Section 4 of the Sixth Amendment shall be
satisfied (or waived by the Lenders in their sole discretion).
(b) Section 1.1 of the Loan Agreement is hereby amended by amending the
definition of "Permitted Liens" by deleting the word "$1,500,000" appearing in
clause (m) thereof and replacing it with the word "$2,500,000".
3. OTHER AGREEMENTS; CONSENT. Subject to the satisfaction of each of the
conditions listed in Section 4, the provisions of the Loan Agreement to the
contrary notwithstanding, the Lender Group hereby consents to the consummation
of the Designated Transactions, so long as the Designated Transactions occur on
or before March 31, 2003.
4. CONDITIONS PRECEDENT TO THIS AMENDMENT. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
(a) The representations and warranties in the Loan Agreement and the other
Loan Documents shall be true and correct in all respects on and as of the date
hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(b) Agent shall have received the reaffirmation and consent of each
Guarantor, attached hereto as Exhibit A, duly executed and delivered by an
authorized official of Guarantor;
(c) No Default or Event of Default shall have occurred and be continuing
on the date hereof or as of the date of the effectiveness of this Amendment; and
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(d) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against Borrower, Guarantors, or the Lender Group.
5. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF CALIFORNIA.
6. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes any and all prior or contemporaneous
amendments relating to the subject matter hereof. Except for the amendments to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan Agreement
and other Loan Documents shall remain unchanged and in full force and effect.
Except as expressly set forth herein, the execution, delivery, and performance
of this Amendment shall not operate as a waiver of any right, power, or remedy
of the Lender Group as in effect prior to the date hereof. The agreements set
forth herein are limited to the specifics hereof, shall not apply with respect
to any facts or occurrences other than those on which the same are based, shall
not excuse future non-compliance with the Loan Agreement, and shall not operate
as a consent to any further or other matter, under the Loan Documents. To the
extent any terms or provisions of this Amendment conflict with those of the Loan
Agreement or other Loan Documents, the terms and provisions of this Amendment
shall control. This Amendment is a Loan Document.
7. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
8. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like
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import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first written above.
HYPERCOM CORPORATION, HYPERCOM EMEA, INC.,
a Delaware corporation fka Hypercom Europe Limited, Inc.,
an Arizona corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
_____________________________ _____________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
___________________________ ___________________________
Title: Chairman and CEO Title: President
__________________________ __________________________
HYPERCOM U.S.A., INC., HYPERCOM MANUFACTURING RESOURCES, INC.,
a Delaware corporation an Arizona corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
_____________________________ ______________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
___________________________ ____________________________
Title: President Title: Chairman
__________________________ ___________________________
HYPERCOM HORIZON, INC., EPICNETZ, INC.,
a Missouri corporation a Nevada corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
_____________________________ _____________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
___________________________ ___________________________
Title: Chairman Title: President
__________________________ __________________________
HYPERCOM LATINO AMERICA, INC.,
an Arizona corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
_____________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
___________________________
Title: Chairman
__________________________
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
___________________________
Title: Vice President
__________________________
EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in that certain Loan and Security
Agreement by and among the lenders identified on the signature pages thereof
(such lenders, together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"), FOOTHILL CAPITAL CORPORATION, a California corporation, as the
arranger and administrative agent for the Lenders ("Agent"), and, on the other
hand, HYPERCOM CORPORATION, a Delaware corporation ("Parent"), and each of
Parent's Subsidiaries identified on the signature pages thereof (such
Subsidiaries are referred to hereinafter each individually as a "Borrower", and
individually and collectively, jointly and severally, as the "Borrowers"), dated
as of July 31, 2001, as amended by Amendment Number One to Loan and Security
Agreement dated as of October 3, 2001, by Amendment Number Two to Loan and
Security Agreement dated as of November 13, 2001, by Amendment Number Three to
Loan and Security Agreement dated as of February 13, 2002, by Amendment Number
Four to Loan and Security Agreement dated as of June 24, 2002, and by Amendment
Number Five to Loan and Security Agreement dated as of December 23, 2002 (as the
same may be further amended, restated, supplemented, or otherwise modified from
time to time, the "Loan Agreement"), or in Amendment Number Six to Loan and
Security Agreement dated as of March 5, 2003 (the "Amendment"), among Parent,
the Borrowers and the Lender Group. The undersigned hereby (a) represent and
warrant to the Lender Group that the execution, delivery, and performance of
this Reaffirmation and Consent are within its powers, have been duly authorized
by all necessary action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of its charter or
bylaws, or of any contract or undertaking to which it is a party or by which any
of its properties may be bound or affected; (b) consents to the transactions
contemplated by the Amendment and the execution and delivery thereof; (c)
acknowledges and reaffirms its obligations owing to the Lender Group under the
Guaranty and any other Loan Documents to which it is a party; and (d) agrees
that each of the Loan Documents to which it is a party is and shall remain in
full force and effect. Although the undersigned has been informed of the matters
set forth herein and has acknowledged and agreed to same, it understands that
the Lender Group has no obligations to inform it of such matters in the future
or to seek its acknowledgment or agreement to future amendments, and nothing
herein shall create such a duty. Delivery of an executed counterpart of this
Reaffirmation and Consent by telefacsimile shall be equally as effective as
delivery of an original executed counterpart of this Reaffirmation and Consent.
Any party delivering an executed counterpart of this Reaffirmation and Consent
by telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of California.
IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation
and Consent to be executed as of the date of the Amendment.
HYPERCOM CORPORATION, HYPERCOM FINANCIAL TERMINALS AB
a Delaware corporation (SWEDEN), an organization organized
under the laws of Sweden
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
______________________________ ______________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
____________________________ ____________________________
Title: Chairman and CEO Title: Chair
___________________________ ___________________________
HYPERCOM DO BRASIL INDUSTRIA E
COMERCIO LIMITADA (BRAZIL), an
organization organized under the laws
of Brazil
By: Hypercom U.S.A., Inc.,
its shareholder
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
____________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
__________________________
Title: President
__________________________
By: Hypercom Latino America, Inc.,
its shareholder
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
____________________________
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
__________________________
Title: Chairman
__________________________